Last week, Australian LNP and Labor Senators passed the most significant National Security Bill for nearly a decade, laughing as they did it.
We didn't need to live with the worst, most restrictive aspects of this legislation. If Labor had stood with the Greens and cross benchers against these proposals, they could have been defeated easily in the Senate.
The Greens will oppose the Bill in the House of Representatives. If it looks like passing, Greens' MP Adam Bandt will move amendments.
Since the Senate passed the bill, plenty of critics have been sending out columns, tweets, facebook posts and press releases condemning the new powers. The serious questions are: why didn't the community hear the messages of concern from opponents of the bill earlier? Why was there so little coverage of the bill?
I'm asking myself these questions as much as anyone else. But unless we can answer them, exhortations for journalists to do better or for the laws to be stopped seems a bit like closing the stable door after the horse has bolted.
Spying and intelligence laws always involve a balance between the extension of state power and the restriction of freedoms of communities and individuals. This bill is the first of three bills that the government aims to push through parliament in the next few weeks. Can more be done to oppose excessively restrictive aspects of the next two bills?
Those who support the bill describe it blandly as a 'modernising' reform that will make sure Australia keeps abreast with our "contemporary, evolving security environment." While there is some truth in these claims, they are designed to confuse the community by explaining away the changes.
This blog post focuses on the threat posed by the bill to freedom of communication and journalists' right to report on matters involving intelligence in the public interest.
There are many other aspects of the legislation which are unclear or need more discussion but unless we have media freedom to report abuses, you won't know about problems when they do occur.
I'll begin by exploring the political processes that led to the passing of the Bill in the Senate.
No surprises in Labor stifling media freedom
At the outset, let's be clear. This bill has been a long time in the making.
Labor was involved in framing this legislation while still in power. The new LNP Attorney General George Brandis tabled a fresh bill the National Security Legislation Amendment Bill (No. 1) in July this year. The bill was referred to the Joint Committee on Intelligence and Security. Significantly, the Greens and independent MPs and cross-benchers were excluded from the Committee.
At the time, The Guardian and Fairfax Media along with some other organisations issued clear alerts about the threat to media freedom posed by the bill.
It was really no surprise to discover that when the Joint Committee finally came out with its report on September 17, Labor and the LNP agreed on the key features of the bill, recommending only minor amendments..
Let's put the names of real people to the anonymous sounding Joint Committee. It's chaired by Liberal Dan Tehan and includes fellow LNP members David Bushby, Philip Ruddock, Bruce Scott, David Fawcett and ex-Senior army officer and head of Defence public affairs Andrew Nikolic.
Labor's Anthony Byrne is Deputy Chair of the Committee. He was rewarded with special thanks last Thursday evening by Attorney General George Brandis for his assistance in getting the bill through the Senate. He is joined by Labor's Deputy Leader Tanya Plibersek, Stephen Conroy, John Faulkner and Penny Wong.
In July, Crikey's Bernard Keane predicted that with the addition of Conroy, Wong, Plibersek and Faulkner, the Labor contingent on the committee looked strong. This strength turned out to be of no benefit to critics of the bill.
No more Snowdens for Team Australia
While the current atmosphere of fear and tension fuelled by media provide a convenient moment to strengthen ASIO's powers, the long term aspiration for the bill was to prevent leaks such as those that occurred last year when whistleblower Edward Snowden exposed the role of the Five Eyes group of nations. The Five Eyes which includes US, UK, Canada, Australia and New Zealand, has been cooperating and sharing the results of spying projects for decades. The revelations show while the projects may be in the interests of the US National Security Agency, they are not necessarily in the interests of the public in any country.
As journalist Glen Greenwald told the ABC in June this year, the Snowden documents revealed that ASIO had asked the NSA to help them spy on Australian citizens. As he explained, the request was a broad one.
The problem is, and if you look at the letter ... they're not asking for very specific individuals to be surveilled. They're asking for a wide surveillance net to be cast over the Australian communications system.Historically, whenever you allow government officials to engage in mass surveillance ... the abuse is virtually inevitable.
This bill criminalises disclosures such as those of WikiLeaks and Snowden and seeks to intimidate and punish journalists such as Greenwald.
Take for example if the bugging of East Timorese leaders during their negotiations with Australia were to happen today. If such an operation was declared a ‘special intelligence operation’ reporting of the bugging could be covered within the bill. Unless the government or intelligence agencies themselves chose to make it public, even evidence of complaints from the East Timorese government could be prohibited in Australia.
Although you might have expected journalists' appetite for reporting on intelligence issues would have been heightened by Wikileaks and Snowden, the Australian media's performance in reporting this week's Bill needs to be evaluated in the context of its generally weak response to the revelations of Wikileaks and Snowden. It's not the first time that many outlets have failed to hold Australian governments accountable for threats of unnecessary invasions of privacy
As journalist Antony Loewenstein told the ABC's Will Ockenden last year, "Regardless of who’s in power in Canberra there’s a sense somehow that although the US prosecutes intelligence security around the world, Australia wants to be seen under that umbrella and rarely asks questions privately or publicly... Some in the media and many of the political elites on both major sides collude to keep the issue as unimportant or simply, business at usual."
No shortage of civil society organisations opposed to the Bill
The Joint Committee held two public hearings and received 31 submissions about the Brandis bill. There were also two private classified hearings. All this information is publicly available on Australian Parliament House site.
This bill smooths the way for integration with overseas agencies, provides immunity to contractors as well as agents of spy agencies, increases existing penalties for reporting ASIO operations and restricts and punishes any communication about special operations.
Special operations are undercover investigations which usually involve the likelihood of agents becoming involved in crimes or planning crimes. They can easily drift from investigation of crime to entrapment or encouragement to commit crimes that otherwise might have not occurred at all.
The submissions are worth reading to get a deeper understanding of the problems with the Bill. These small extracts focus on the public right to know and the restrictions on journalists' reporting.
Gilbert + Tobin Centre of Public Law
A journalist might, for example, be subject to up to five years imprisonment where they publish an article containing any – even very vague – information about an ongoing terrorism investigation that relates to an SIO. A teacher who subsequently uses this article as a discussion aid in a legal studies class might also be caught by the offence. This first disclosure offence therefore has the potential to have a considerable chilling effect upon public debate about matters that are clearly of national interest.
Under the proposed SIO regime, a journalist could still be subject to up to ten years imprisonment for publishing an article which reveals the abuse of that regime, such as, for example, the general surveillance of non-suspect Muslim communities.
Australian Lawyers' Alliance
These exceptions (for disclosures in the bill) are narrow and weighted heavily towards intelligence operatives. There is no exception providing for the public interest, the national interest or the legitimate role of the media. We are concerned that the reforms will have a prejudicial impact on journalists reporting on intelligence operations, which may lead to prosecution and imprisonment of journalists who receive disclosures about such matters and report them. This is an unprecedented clause which would capture the likes of Wikileaks, the Guardian, the New York Times, and any other media organisation that reports on such material. We note that the penalties exacted upon whistle-blowers in such circumstances would be unduly harsh. Isolating potentially serious abuses of government power from public scrutiny is dangerous and liable to abuse.
Media organisation including ABC, SBS, Fairfax Media, New Corp, Bauer Media, West Australian, AAP, Commercial Radio, MEAA
As Crikey reported in August, most of Australia's media corporations joined in a joint submission.
insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in a modern democratic society – reporting in the public interest. Such an approach is untenable, and must not be included in the legislation. This alone is more than adequate reason to abandon the proposal as the proposed provision significantly curtails freedom of speech and reporting in the public interest. This is particularly so as the proposed section 35P prohibits any disclosure of information relating to an SIO, not just reporting in the public interest. In addition, SIOs by their very nature will be undisclosed. This uncertainty will expose journalists to an unacceptable level of risk and consequentially have a chilling effect on the reportage of all intelligence and national security material. A journalist or editor will simply have no way of knowing whether the matter they are reporting may or may not be related to an SIO.....To illustrate this further, if the producer or editor disclosed the information to anyone in the course of making an editorial decision, then the source, the journalist and the editor could all be jailed. The conversations that are currently able to be had as media outlets make responsible decisions about disclosure in the public interest, would be denied under the proposed legislation, because any disclosure by anyone – to anyone – would be a criminal offence.
The Guardian Australia
Perhaps reflecting its broader international experience, The Guardian mounted a powerful defence of what it considers to be journalism about intelligence matters in the public interest.
It summarised what it saw as threats in the bill including that it would:
immunise operatives of intelligence and security agencies from the usual consequences of breaking the criminal and civil law in certain circumstances.
criminalise acts which enhance accountability and which are of proven value in a democratic society, in particular the cultivation by journalists of sources and disclosures that can augment the oversight work of Executive Government, Parliament and the Judiciary.
expose to heavy jail terms persons engaged in legitimate acts of democratic scrutiny, including whistleblowers, journalists, academics and civil society organisations concerned with liberty, government accountability and the rule of law.
The Guardian also focused on Section 35P and raised a very important point about the flow on effects of eliminating the potential for reporting on ASIO
The consequences of proposed new section 35P would do damage to one of the essential checks and balances in a democratic society. The work of journalists, co-operating sometimes with whistleblowers willing to take great risks to help expose unlawful or improper conduct in government and elsewhere, is one of democracy’s great safety valves. Its public interest value is myriad. It may force an end for the time being to corrupt or harmful practices; it may avert them; it may serve more generally to inform voters’ in their judgments at the ballot box.
The existence of the potential for disclosure can itself be a potent deterrent to wrongdoing or negligence or the kind of strained self-justifications to which like-minded people in closed decision-making environments are prone. It is the importance of potential disclosure which makes the chilling effect of provisions such as proposed new section 35P so damaging. Lips may not be pursed to blow a whistle. Journalistic enquiries may not begin, may not reach far enough.
The submission made the important point that experience shows that media disclosures can lead to inquiries and safeguards that protect the public. Of the 20 public reports of the Inspector-General of Intelligence (as at 31 July 2014), nine appear to have been triggered directly or indirectly by media disclosures.
All these submissions were publicly available. The Conversation also published a report about the bill in late August that was reprinted in Mumbrella.
There is no excuse for journalists not being able to come to grips with the Bill quickly enough. There was plenty of warning and plenty of information available.
Every committee member was very well aware in recommending the bill that civil society and media organisations viewed the threat to journalism and the public right to know seriously.
Every media organisation knew that journalists' rights to report on intelligence and policing matters were under further threat.
How the Committee disposed of objectors' arguments?
The Committee held two public days and two private hearings.
Dr Lesley Lynch appearing on behalf of the NSW Council for Civil Liberties told the Committee that she regarded it as an "outrage" that the Committee was proceeding without seeing the whole planned package of laws. "if we proceed with this, you cannot—we cannot—get a sense of the cumulative impact of what it is we are putting on the books."
Her argument was brushed aside.
She reminded the Committee that "these short-term exceptional pieces of legislation may well be with us in the longer term. And from where we sit at a state level as well. we are beginning to see in a very significant way one of the ripple effects of that as these exceptional and previously unthought of kinds of practices rolling over into criminal law at the state level with pretty significant and pretty worrying effects." She went on,"unlike most western democracies, we have no bill of rights, we have no charter. We are, therefore, in a more vulnerable situation in terms of impact on our liberties, our rights and our democratic principles, and the nature of our justice system than most other western democracies."
Federal Secretary of the MEAA Chris Warren tried to communicate to the Committee the importance of the media's historic role in revealing abuses of power by intelligence agencies.
MP Andrew Nikolic drew on his defence experience in rebuffing Warren, "Over the years I have spent a lot of time interacting with the intelligence community—a highly specialised organisation that builds over time the skills, knowledge and attitudes to separate the wheat from the chaff, if you like, in the information that they encounter. What training or special knowledge gives those who publish for a living the contextual understanding to similarly separate the wheat from the chaff, to decide whether they will sit on something, to use your words, or to publish?"
There was no doubt where Nikolic stood.
Warren: Usually decades of experience. It is exactly the same skill and development that comes from doing the job over many years. I think it is a mistake to assume that journalists are not acutely conscious of the dangers posed by terrorism or by non-state actors."
Nikolic: I am not suggesting that....
Warren: So, as I say, journalists are not foolish or cavalier about this. They are aware of the dangers but they are also aware of the very critical role that they have to play in keeping the public informed. I think the test is: look at the record. The record in Australia—I think it is also true in other countries—is that journalists have handled these matters, where they have been leaked to them, with sensitivity and respect both of security and of the public's right to know.
When Warren raised the possibility that ASIO would track journalists to collect intelligence, LNP Senator Fawcett was not happy.
Fawcett: So do I take it, Mr Warren, that you do not have confidence in the current system of warrants—because, to actually access that kind of information, an agency would need a warrant to do that.
Warren: It is difficult to know, as to the system of warrants, because of the confidentiality around the warrants. I do not make that comment either way. But we are genuinely concerned about anything that would enable the security agents to enter into the computer infrastructure of journalists or of media information, and to do the broad range of activities to that that is laid out here.
Shortly after that exchange, Warren's contribution to the discussion came to an end.
One is left with the impression that the members of the Committee had already made up their minds that they would not leave open even a limited exemption for disclosures in the public interest by the media or anyone else. The only avenue for a person wanting to report abuse is a secret approach to the Inspector General of Intelligence and Security. Experience has shown that such mechanisms can end up badly or even as a deterrent for whistleblowing
This does not mean that no revelations will ever be made. But when they do, the risks for those involved will be high.
The Committee process was biased in favour of secrecy and the power of ASIO to frame the debate. There were two secret private hearings when ASIO was allowed to respond to the criticisms and no opportunity given to community actors to respond further.
The Attorney General's department was asked to respond to the call for a public interest exemption. It's response was that journalists will have the opportunity to contact ASIO for guidance and clarification when needed:
Advice from law enforcement agencies is that media professionals have engaged effectively with them in seeking guidance or clarification about reporting n such matters, in order to avoid the risk of unintentionally compromising sensitive operations. Media professionals can similarly contact [ASIO] on a publicly listed telephone number on the Organisation’s website. The media telephone line is staffed 24 hours.65
The Bill does provide for a defence of 'recklessness' for those who are prosecuted for making disclosures public. This would cover accidental reports. As soon as a reporter had the slightest idea that information involved a "special operation", he or she could either keep the information secret or better still from ASIO's point of view, let them know about the leak.
Deceptively, the Committee recommended that the Director of Public Prosecutions would only prosecute in the 'public interest'. A casual reader could conclude that this had something to do with reporting 'in the public interest'. "Public interest' is used in many different contexts. In fact all prosecutions are supposed to be in the 'public interest'. If for example, an accused's death is imminent, it would not be 'in the public interest' to prosecute.
Committee encourages journalists to rely on ASIO's 24 hour a day drip feed
In its report, the Committee highlighted the important role of ASIO’s existing 24-hour media unit in providing opportunities for journalists to clarify any concerns about a possible operation, including about the re-publication of any information.
In tune with its lack of understanding of media freedom, the Committee actually wants to foster the sort of dependency on unnamed official sources that encourages passivity and timid reporting. If there was a public interest defence, it is possible a media organisation could negotiate any security concerns with an agency but without one, no reporter with a serious intention to publish a leak would go near ASIO.
It's not the job of journalists to chill out with ASIO and police.
When we think about censorship, we tend to think of the absence of reports. But a secrecy regime does not mean there will be silence about security activities. There will be plenty of stories but these will be fed to a media that is reliant on a drip feed of calculated leaks and official versions that can easily turn out to be exaggerated or plain wrong. As ABC Media Watch's recent report Controlling the Message and Telling Tales of Terror have demonstrated. The 800 strong raid package that has so far led to two people being charged ( one was given a bond for possession of a stun gun) came complete with a tweet alert and police video.
The more compliant most media organisations become, the more difficult it can becomes for serious reporters to do their job. Their organisations can be punished by the withdrawal of routine information so that they appear to miss the latest 'big story'. This used to be the reason why some media organisations had two police reporters, one for investigative work and one to stay on friendly terms with the police, a luxury unlikely to be affordable these days.
The problem for freelancers, smaller and non-profit organisations is that they often lack sufficient resources and legal support to carry out risky investigations.
The Guardian covered the submissions and hearings. Reports: Australian intelligence watchdog wants clarification on national security plan and Counter-terrorism proposals ‘greatly concerning’, say civil liberties groups. The SMH, The Australian, Crikey and Computerworld also carried reports ( Par added October 1,2014).
Brandis seizes the moment to push bill through parliament
On 4 September 2014, the Committee wrote to the Attorney-General advising that the report would be delayed until later in September.
When the report was tabled on September 17, it made a number of minor recommendations, some of which provide for limited oversight of the new powers by the Inspector General of Intelligence and Security. These sort of mostly secret accountability mechanisms are better than nothing but do not address serious human rights and freedom of communication problems with the bill. Otherwise, the Joint Committee report accepted the draft bill that Brandis had presented to parliament in July.
The timing of its release could not have suited the government better. There was little time for critical discussion in the media to inform the public about which of its freedoms were being traded away for the foreseeable future. But in any case, the media was busy amplifying ASIO, police and political messages about troops leaving for Middle East, heightened threats, raids and racist calls to 'ban the burka'.
Democratic Liberal Senator David Leyonhjelm raised an alarm that the Bill could allow torture. This then became the story, obliterating many other problems with the bill including those relating to freedom of communication. Brandis announced that although he did not consider it necessary, he would add a rider explicitly prohibiting torture. Even the new head of ASIO Duncan Lewis said he was "perfectly happy" with this idea. Behind the scenes, they were probably relieved that thanks to journalists' tendency to chase the same story, many other concerns about civil liberties in the bill were being forgotten.
Given the highly concentrated nature of the mainstream media agenda and editorial managers' allocation of reporting resources , most Australians heard little or nothing about the bill.
On Wednesday, Greens Senator Penny Wright objected to the rush to pass the bills after a "faux inquiry by an exclusive committee of Labor and Liberal MPs. The community should be involved. Australia's counter-terrorism organisations already have very extensive powers. In times of heightened security, civil liberties and legal norms like the presumption of innocence are more vital than ever."
The bill itself and the government's final amendments were only available just before debate on the bill began on Wednesday. A report from the Scrutiny of Bills Committee spelling out problems with the legislation and the Attorney General George Brandis's response to it was not even tabled until well after the debate had begun. The bill wasn't scrutinised by the Senate Legal and Constitutional Affairs Committee or the Human Rights Committee.
Wright told the Senate,
In my view...many of the provisions of this bill will be found to be incompatible with various human rights in Australia. It is likely that the committee will actually make the same finding at the end of its process. But it is also likely that the government and the opposition will have dispensed with this and will pass the bill before it has even been canvassed by the human rights committee, making a mockery of the process that is designed to give appropriate consideration to human rights in the law-making of our national parliament.